After Work: Automation and Employment Law, Part Three

Source: Cynthia Estlund, OnLabor blog, August 4, 2017

Automation and Work: A Path Forward in the Face of Uncertainty
For over a century, workers and their organizations have struggled to raise labor standards and expand employee rights and benefits. Whatever the benefits to workers and the society, to any one private firm those laws represent a tax on employing human labor, and part of the calculus in decisions to contract out work or to replace people with machines. A logical though dispiriting response to plausible predictions of escalating net job losses would be to find ways to unburden the employment relationship.

There are arguments against any such response to the automation threat, and I discuss them in my paper. But they are partial and qualified. If we remain concerned (as I do) that labor and employment laws are contributing in some measure to net job losses, we would do well to consider whether it is possible to reduce the legal tax on employing human labor without undermining the quality and rewards of work for all those who work for a living in the future. The beginning of an answer lies, I believe, in separating the question of what entitlements workers (or people) should have from the question of where the attendant costs should fall…..

Related:

After Work: Automation and Employment Law, Part One
Source: Cynthia Estlund, OnLabor blog, August 1, 2017

The labor world took notice when Andy Stern emerged from a years-long deep dive into the future of work, and concluded that the future will bring a lot less work. His book, Raising the Floor, helped to spur a debate over the universal basic income (UBI), including on this blog. But the underlying issue of technology-related job loss has not yet engaged the close attention of labor and employment law scholars. That should change. Even more than firms’ flight from direct employment through fissuring, their replacement of human labor with ever more capable and cost-effective technology threatens the foundations of economic and social life, and calls for a reexamination of prevailing approaches to regulation of employment.

I recently posted a paper on SSRN about the problem of automation and job loss. Here I will take up three of its points in highly condensed form. This post will briefly review the debate on automation and job loss. The second post will discuss the role of labor costs, including those attributable to labor and employment law, in motivating firms both to automate and to contract out labor needs through “fissuring.” The third post will ask what can be done within the boundaries of labor and employment law to address the risk of impending job losses, considering the high degree of uncertainty about that risk….

After Work: Automation and Employment Law, Part Two
Source: Cynthia Estlund, OnLabor blog, August 2, 2017

Automation and Job Loss: What’s Law Got To Do With It?
The challenge of automation is in many ways continuous with the challenges of “fissured” work – to use David Weil’s influential formulation. In particular, both trends are driven in significant part by the costs and risks of employing human beings. According to investment banker Steven Berkenfeld, CEOs these days ask, “’Can I automate it? If not, can I outsource it? If not, can I give it to an independent contractor?’ Hiring an employee is the last resort.”

Part of the cost of employing humans stems from labor and employment laws. Some laws entail predictable direct costs, such as payroll taxes for social insurance programs, minimum wage and overtime laws, and the “pay or play” mandate of the Affordable Care Act. Other laws raise the cost of employing people by injecting risk, like the risk of litigation under laws prohibiting discrimination, harassment, or retaliation. Large corporate compliance departments, costing billions of dollars per year, are devoted in part to avoiding or managing these risks and liabilities…..